Constitutional Hardball and Congress’s Oversight Authority

John E. Bies
Saturday, April 27, 2019, 10:00 AM

Over the past week, the president’s statements and the executive

President Trump and Speaker of the House Nancy Pelosi at the 2019 State of the Union address. (Official White House Photo by D. Myles Cullen)

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Over the past week, the president’s statements and the executive branch’s actions in response to congressional oversight requests suggest that the executive branch may have decided to adopt a strategy of maximal resistance to oversight across the board. If so, this would be a dramatic break from the executive branch’s approach to responding to congressional requests for at least the past half-century. Implementing a strategy designed to stonewall meaningful oversight across the board would also be a form of constitutional hardball that significantly increases the stakes in this contest of will between the branches.

At least since Watergate, if not for longer, the executive branch has recognized the important role congressional oversight plays in the constitutional system and has understood itself to have a constitutional obligation to accommodate legitimate oversight requests from Congress. This long-standing executive branch perspective is embodied in a 1982 memorandum to all agency heads regarding how to respond to congressional requests, often referred to as the Reagan memo. This memorandum, which remains in force, explicitly states that it is executive branch policy “to comply with congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.”

While the Reagan memo recognizes there may be times when it is necessary to withhold information to protect important executive branch confidentiality interests, it emphasizes the expectation that such impasses should be rare and limited to “compelling circumstances.” Instead, the Reagan memo underscores the importance of engaging in a good faith negotiation to accommodate the interests of both branches: “Historically, good faith negotiations between Congress and the Executive Branch have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving conflicts between the Branches.” This process of good faith negotiation has become known as the accommodation process.

To be sure, in nearly every administration since the Reagan memo, there have been a handful of contentious issues where a dispute between Congress and the executive branch regarding access to executive branch information reached a high-profile impasse. These instances of interbranch conflict have been controversial matters that garnered significant media coverage and public interest. But the salience of these occasional instances of conflict should not obscure the extent to which the branches have been able to resolve the vast majority of disputes through good faith engagement in the accommodation process. Every year Congress issues hundreds if not thousands of oversight requests to the White House and executive branch agencies. Yet the number of disputes that reach the level of public consciousness in a presidential term can usually be counted on one hand. This is because in most oversight matters, the branches reach a reasonable accommodation, which often includes some disclosure of agency information arguably subject to a potential executive privilege claim, and thus avoid impasse and escalation.

This approach to accommodation is not driven just by policy but also by recognition of a constitutional obligation to seek such reasonable accommodations. The U.S. Court of Appeals for the D.C. Circuit has explained this constitutional mandate in a manner worth quoting at length in light of present circumstances:

The framers ... expect[ed] that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote the resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusively adversarial relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.

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[Because] it was a deliberate feature of the constitutional scheme to leave the allocation of powers unclear in certain situations, the resolution of conflict between the coordinate branches in these situations must be regarded as an opportunity for a constructive modus vivendi, which positively promotes the functioning of our system. The Constitution contemplates such accommodation. Negotiation between the two branches should thus be viewed as a dynamic process affirmatively furthering the constitutional scheme.

In 1981, Reagan’s attorney general described the essence of this process: “The accommodation required is not simply an exchange of concessions or a test of political strength. It is an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

There are important ramifications of recognizing a constitutionally based obligation to engage in a serious and good faith effort to reach a reasonable accommodation when there is a disagreement between the branches. Every executive branch official swears an oath to uphold the Constitution upon taking office, and this commitment should be understood to include the constitutional mandate to engage in good faith to seek reasonable accommodations.

Adopting an approach of resisting all oversight requests across the board would be a dramatic break from this traditional executive branch understanding of its obligations and would constitute a breach of this constitutional mandate to engage in good faith to resolve these sorts of interbranch disputes.

Before turning to what the adoption of such an approach would mean, a note of caution: It remains possible that the pattern of hardline positions taken by the executive branch in response to oversight requests in the past week was just a coincidence, not a design. As Jonathan David Shaub ably explains, when taken in isolation, each response is accompanied by particularized constitutional justifications and claims to respond to unusual positions taken by congressional committees as well. Harder to explain in this fashion, though, are President Trump’s more strident statements regarding how the administration plans to respond to oversight from House Democrats more generally. While perhaps these may also be discounted as off-the-cuff statements rather than a well-crafted legal position, given the global nature of these statements and President Trump’s willingness to transgress norms and conventions in other contexts, it seems worthwhile at this point to at least game out what it might mean if the administration were to attempt to resist oversight across the board.

If the pattern of statements and actions by the executive branch over the past week is a harbinger of a sharp turn to such a maximalist resistance strategy, then the country is truly at an important constitutional moment that has the potential to shape the relationship between the branches in significant ways for the foreseeable future.

In this sense, the decision to adopt a strategy of resisting oversight across the board would be a form of constitutional hardball. That is, it would be taking an uncompromising approach in the pursuit of partisan ends that may not violate express constitutional commands but certainly flouts long-standing conventions and norms about how constitutional processes should operate—conventions and norms that officials have, in the past, regularly followed out of a sense of obligation. These tactics, then, are not just political hardball. Rather, as Joseph Fishkin and David E. Pozen describe it, such tactics “put pressure on the ‘norms of good institutional citizenship’ that help to structure and ‘sustain the constitutional system.’”

The adoption of constitutional hardball tactics places other constitutional actors in a difficult quandary. Actors on the receiving end are often confronted with a choice between two unappealing options: acquiesce, and accept the changes in the constitutional system wrought by the dissolution of the constitutional understandings and conventions that have been broken; or escalate, and enter a high-stakes constitutional confrontation that may be politically unappealing. When the president is the one adopting a constitutional hardball tactic, there is an additional complication: Congress’s institutional interests may be at cross-purposes with the political interests of at least those members who share the same party as the president, which creates cross-pressures that can confound Congress’s ability to respond in an effective manner.

This is the choice facing the House of Representatives—and, more specifically, House Democrats—if the administration has, indeed, adopted a strategy of resisting oversight across the board.

To acquiesce to such resistance across the board would be to accept a fundamental reworking of the norms and conventions that structure interbranch interactions about oversight. These changes would effect a reset of the constitutional system that could be difficult to reverse in the future (perhaps to the future chagrin of the Republican members who would have facilitated this shift). So Congress might be living with the precedents set this year for a long time.

At the same time, members of Congress have limited options to respond in a global way to such a global tactic:

  • They could commit to move each dispute quickly to impasse, a contempt vote and potential litigation—but this could be resource intensive and present hard questions about litigation strategy, and it would depend on asking another branch (the judicial branch) to step in and enforce congressional prerogatives.
  • They could consider resuscitating long dormant congressional powers such as inherent contempt, which haven’t been relied on since the early 20th century—but this would undoubtedly be both politically and constitutionally fraught, and it could present enforcement problems of its own.
  • They might contemplate whether to employ other congressional powers at their disposal that might be used to check or balance executive branch conduct—such as the power of the purse—as a tool to leverage a meaningful change in the executive branch’s hardball oversight strategy. But this too is likely to require a commitment of political resources that members might prefer be directed toward the accomplishment of substantive legislative priorities or other political ends.

In short, notwithstanding the important institutional interests of Congress that would be imperiled by the president playing constitutional hardball, escalating the constitutional crisis may be viewed within the legislature as both risky and politically unappealing. That’s not to say that the risks associated with escalating the constitutional crisis are limited to Congress—the executive branch risks unfavorable case law that could strengthen Congress’s hand in future oversight negotiations, and the courts face difficult questions about their role and efficacy in adjudicating political disputes, along with a risk that their participation in such disputes may undermine their perceived legitimacy.

A middle-of-the-road approach—for instance, identifying and prioritizing selected disputes to litigate in the courts—may be more politically appealing. But it would be a disproportionate and potentially underwhelming response if the administration implements a global and fundamental shift in strategy. Congress might well win some narrow battles but still lose the war. The result would likely be that a significant number of oversight inquiries would still remain effectively thwarted by the administration’s hardball tactics, and any accountability would at best be substantially delayed even in those matters that were litigated. Such a response may not be enough to avert a meaningful erosion of the constitutional norms and conventions that have governed congressional oversight during recent history and, therefore, not enough to prevent a material shift in the constitutional system.

Finally, it’s important to recognize that the difficult choices presented by this hardball approach would not be limited to members of Congress. It may not be surprising at this point if the president and his senior advisers do not embrace a robust view of the obligation to engage in good faith efforts to seek reasonable accommodations in oversight disputes—an obligation that flows from their constitutional oath. But those are not the only officials who may potentially have a decision to make. Any executive branch officials who are presented with both a congressional demand for information and a presidential instruction not to comply will also be faced with a difficult choice and will need to evaluate their own personal view of what their office and their oath require.

John E. Bies is Chief Counsel at American Oversight, a non-profit focused on government accountability. He served for eight years in the Obama administration at the Department of Justice, first as Counselor to Attorney General Eric Holder and then spending seven years as a Deputy Assistant Attorney General in the Office of Legal Counsel where he advised White House and executive branch officials on FOIA, Congressional oversight, executive privilege, ethics, separation of powers, and other constitutional, statutory, and administrative law issues. Prior to his service in the government, Bies handled complex civil litigation and investigation and enforcement matters as a partner at Covington & Burling LLP and clerked for Judge Sandra Lynch on the First Circuit. He received his law degree with high honors from the University of Chicago Law School.

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